February 15, 2009

Further Analysis

In my last post, I described the latest filing in the Calvary lawsuit. There, I concentrated on the petition to intervene and gave short shrift to the complaint-in-intervention. The former document makes the case that The Episcopal Church should have a place at the table in the proceedings, and the latter document lays out the facts of the case as viewed by the church. It also states the outcome for which the church is petitioning. That complaint-in-intervention deserves more attention. (The complete filing can be read here.)

The complaint-in-intervention contains 59 numbered paragraphs. The first 58 are intended to lay the groundwork for the final paragraph, which sets out what the church wants from the court.

The first 11 paragraphs are listed under the heading “Parties,” and they merely identify the the players and their roles in the case. There is nothing controversial here.

The next section, encompassing paragraphs 12 through 22, is labeled “Structure of The Episcopal Church.” I find this section unremarkable, but the defendants may have some quibbles. As described in this section, The Episcopal Church is “three-tiered” (paragraph 12), consisting of the General Convention (“the supreme legislative authority of the Church,” paragraph 13), along with a Presiding Bishop (paragraph 14) and Executive Council (paragraph 15). According to the filing (paragraph 14): “The Presiding Bishop is charged with leadership in initiating and developing Church policy, strategy, and programs; speaking for the Church on such matters; and carrying out appointive and disciplinary functions prescribed by the General Convention.”

Paragraphs 16 and 17 address dioceses, described as the “next level of the Church’s organization.” Paragraph 16 points out: “A diocese may be formed only by action of the General Convention, and only with an unqualified accession to The Episcopal Church’s Constitution and canons.”

Paragraphs 18 and 19 describe parishes, and paragraphs 20–22 describe how the three levels interact through conventions. Paragraph 21 cites Canon 1.17 (8), which requires that office holders carry out their duties in accordance with the constitution and canons of the diocese and general church.

The next section is titled “The Anglican Communion” and comprises paragraphs 23–25. The Communion is described as a fellowship of 38 autonomous provinces, each uniquely exercising jurisdiction within a defined territory.

Following this is “Dioceses of the Episcopal Church,” paragraphs 26–29. According to the document, diocese are formed only with the consent of the General Convention and must accede to the authority of the General Convention (paragraph 26). Once formed, a diocese is “a subordinate unit of the Church, bound by the provisions of the Church's Constitution and canons” (paragraph 27, which also lists specific requirements imposed on dioceses). Paragraphs 28 and 29 explain how missionary dioceses may be transferred out of The Episcopal Church, but that the Diocese of Pittsburgh is not a missionary diocese. “The Constitution and canons of The Episcopal Church do not provide for the autonomy, release, withdrawal, or transfer of any diocese that is not a Missionary Diocese (paragraph 29).”

Of course, Bob Duncan and his allies would dispute the description of dioceses as being subordinated to the General Convention. He advances the theory that independent dioceses voluntarily associate in the General Convention and are free to leave it at will, a view unsupported by the governing documents of the church or its history. Alas, this unorthodox theory was given some credibility by the unfortunate remarks made by the Archbishop of Canterbury recently, who, nevertheless, has no legal authority over The Episcopal Church.

Paragraphs 30–34 are titled “Ordination and Discipline of Bishops by The Episcopal Church.” These paragraphs describe the Declaration of Conformity, the need for consent to the consecration of a bishop, and (briefly) the disciplinary procedures of Title IV.

“History of the Episcopal Diocese of Pittsburgh” is the title for paragraphs 35–40. This section notes that the diocese was formed in the usual way in 1865 and that, until recently, it participated in The Episcopal Church as required by the constitution and canons of the church. Presumably, this is meant to establish that, until recently, diocesan leaders shared the view that dioceses are subordinated to the General Convention.

The next section is “Recent Developments in the Diocese,” which encompasses paragraphs 41–49. This part of the narrative begins with the November 2007 convention, at which Duncan and his allies advocated constitutional changes purporting to allow the diocese to detach itself from The Episcopal Church. It describes Duncan’s deposition, the vote for “realignment” at the October 2008 convention, and the reorganizing convention of the Episcopal Church diocese in December 2008. The section ends (in paragraph 49) with the church’s view of the status of Duncan’s “diocese”:

The Episcopal Church is informed and believes that defendant former Bishop Duncan, as well as the other individual defendants described in Paragraph 45 who were formerly part of the leadership of the Diocese, control an entity of unknown form that uses the name “Episcopal Diocese of Pittsburgh,” and hold that entity out as the Diocese; have asserted authority over Episcopal parishes, congregations, and other organizations in the Diocese; and have exclusive possession and control of substantially all of the real and personal property of the Diocese.

The final section is titled “The Current Dispute” and accounts for paragraphs 50–58. It begins by reviewing various milestones in the Calvary case, the most important of which is the agreement of all parties to the stipulation of October 2005 (paragraph 50). In paragraph 57, it is asserted that the various actions taken by Duncan and his supporters are contrary to the law and to the constitution and canons of the church. The diocese, as recognized by The Episcopal Church, is the proper authority to use the assets of the diocese and is the entity to which paragraph 1 of the stipulation applies. (That paragraph says that, whatever happens to individual parishes, diocesan assets are to stay with “the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.”) On the other hand, Duncan has a different view (paragraph 58):

The Church is informed and believes that defendant Bishop Duncan and the other individual defendants described in Paragraph 45 take the position that they are properly in control of the governance of the Diocese; that they have withdrawn the Diocese from The Episcopal Church to join the Anglican Province of the Southern Cone; that they are thus entitled to the use and control of the real and personal property of the Diocese; and that their actions are not in conflict with Paragraph I of the Stipulation and Order.

Paragraph 59 points out the incompatibility of its view of the current situation (paragraph 57) and that of the defendants (paragraph 58). The court needs to declare which side is correct. In particular, The Episcopal Church asks that the court:

Declare that the people recognized by The Episcopal Church are the proper authorities to control the assets of the diocese.

Declare that property held by and for the Diocese of Pittsburgh may only be used for the mission of The Episcopal Church and the Diocese of Pittsburgh, subject to the rules of each.

Order the defendants to relinquish all diocesan assets to the proper authorities of the diocese.

Require defendants to submit an accounting of all assets held on October 4, 2008, when the “realignment” vote took place.

Provide such further relief as may be proper.

This paragraph, of course, sets out what Calvary Church, the Episcopal Diocese of Pittsburgh, and The Episcopal Church are after. It is difficult to see how the court could refuse this request without ignoring the facts of the case and without running afoul of the constitutional separation of church and state. How long this will take, I cannot guess, but Judge Joseph James does not seem to have a very difficult decision to make.